State Adminstrative Hearings Judge To Rule On Election Law

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CAMPAIGN 2012

TALLAHASSEE (CBSMiami/NSF) – Opponents of the state’s controversial elections law squared off against the Secretary of State’s office in a hearing that marked the first part of a likely two-stage battle to block the law’s most contentious provisions from governing the November elections.

Because of a history of racial or language discrimination, Collier, Hardee, Hendry, Hillsborough and Monroe counties are required under the Voting Rights Act to get “preclearance” from the U.S. Department of Justice or a federal court in Washington, D.C., before implementing changes to elections procedures.

Sen. Arthenia Joyner, D-Tampa, and a pair of voting-rights groups contend that exempting those five counties from those provisions, including a reduction in early-voting days and limits on when voters can change their addresses at the polling place, creates a two-tiered system and violates state law requiring elections rules to be uniform across the state.

The least controversial measures were cleared by the Justice Department, but state officials took the more combustible provisions to the D.C. court when they feared the agency would reject them; that case is ongoing.

In 2011, after the bill was signed, then-Secretary of State Kurt Browning told the 62 other counties to implement the law anyway, something critics of the measure say was unprecedented.

The specific issue before an administrative judge on Friday was whether a directive from Browning telling supervisors in the 62 counties to go ahead with the law constitutes a “rule” and should be thrown out because he didn’t take it through the state’s rulemaking process.

Mark Herron, representing the opponents of the law, said the directive clearly was aimed at implementing the law in the same way a rule would.

“Because the secretary elects not to call the statements a rule is not determinative,” Herron said.

But Daniel Nordby, a lawyer for the Florida Department of State, brushed aside that argument.

“The challenged statements here do nothing more than reiterate the requirements of existing state and federal laws,” Nordby said.

He also said the supervisors of elections — who are elected in their own right and don’t work for the secretary of state — would have to follow the law regardless of what Browning or current Secretary of State Ken Detzner told them to do.

Judge Thomas Crapps seemed skeptical of that argument.

“If the Secretary of State’s office is just restating what the statute says, what’s the point of the directive?” he asked. “Why send it out at all?”

Nordby said it was meant to summarize the law and guide supervisors about elections scheduled for shortly after the law was signed.

He also questioned the contention that the split between counties covered by the Voting Rights Act and those that are not covered by it created two elections systems, given that the five covered counties would follow the law once it was approved by the federal government.

“The fact that, as we speak now, preclearance has not been obtained does not in any sense mean that the Secretary of State has implemented or enacted a dual voting system,” Nordby said. “It simply recognizes the state of the law.”

“You can call it uniform, but when there’s one set of election laws on one side of the bridge over Tampa Bay and a different set of election laws on the other side, that is not uniform,” said Simon, whose group is challenging the law.

Because Crapps is unlikely to order Detzner to issue a new directive telling supervisors to ignore the law — and doing so might go beyond the jurisdiction of DOAH — both sides said it would likely take a separate action to bar the law from going forward.

“If we win here, in order to secure uniform elections in Florida, we might have to go to another court,” Simon said.